Article 14 of the Spanish Constitution includes the following as one of its most important provisions: The fundamental right to equality and hence to non-discrimination. Such article stipulates that Spanish citizens are equal according to the law and no discrimination whatsoever can prevail for reasons of birth, race, gender, religion, opinion or any other personal or social condition or circumstance, among which is age.

From the standpoint of labour relations, age can be data that hinders workers’ professional careers, in particular when such workers are young or when they are older, for such purpose the laws and courts, by applying such laws, are the guarantors that these situations do not harm groups that could be vulnerable due to being in a specific age range.

How does the law protect workers from this kind of discrimination?

The regulations expressly state that discrimination due to age is prohibited; hence this protection encompasses not only job recruitment but also the specific development of employment contracts and working conditions, professional promotion and even the termination of a labour relationship or the stages prior to the expiry of the term of a contract. There are therefore several articles in the Spanish Labour Relations Act (4.2.c), 17.1 and 55.5) and in Act 15/2022 on equal treatment and non-discrimination that protect workers from being victims of corporate conduct that could violate the aforementioned right to non-discrimination.

The aforementioned legislation is not the only one protecting workers from this discrimination, but European regulations also prohibit these possible attitudes through various original legal community provisions, (Article 21 of the EU Charter of Fundamental Rights and Articles 10 and 19 of the Treaty on the Functioning of the European Union) and related regulations (Directive 79/7/EEC and Directive 2000/78/EC)

Based on the previous explanations, the regulatory provisions, clauses in collective bargaining agreements, individual agreements and unilateral decisions adopted by employers are deemed null and void if they result in detrimental situations of direct or indirect discrimination due to, among other issues, age, and the dismissals resulting from such situations.

What have the Spanish courts ruled on this specific kind of discrimination?

Not only is this discriminatory conduct prohibited, as we have just seen, by virtue of substantive law, in other words legislation, but the courts are the ones that have guaranteed its objective by applying it and have ruled against this specific kind of discrimination.

An example of this is the judgement of the High Court of Madrid of 20 October 2022, Appeal 326/2022 in which an objective dismissal was ruled and categorised as null and void due to discrimination based on age.

It can be seen in such judgement that the worker was the only one affected by the termination measure; his job was not eliminated, but was filled by a younger worker, in spite of the dismissed worker having good performance assessments. Moreover, it was proven that the company was promoting generational renewal of its staff by recruiting younger employees, resulting in a higher percentage of dismissals among the older workers. All the foregoing led to discrimination based on age being admitted and the dismissal being ruled null and void.

Similarly, the judgement of the Labour Court Number 33 of Madrid of 28 November 2020, the ruling judge being Mr. Pablo Aramendi, deemed that the termination of the contracts of five workers over 50 years old implied a strategic decision adopted by the company for the purpose of generational renewal of its staff by means of dismissing the older workers and that there was no objective reason to justify this.

Such conduct implies discrimination based on age and therefore the dismissals were ruled null and void, whereas the dismissal of another worker in the company, younger than this age, was considered unfair, since there was no discrimination in such case; compensation for moral damages was ruled for the dismissals deemed null and void and such compensation was calculated according to the provisions on penalties in the Redrafted Text of the Spanish Labour and Penalties Act (LISOS).

Such judgement deemed that the additional harm caused by this situation to the person suffering discrimination based on his age in the following manner:

“Such blatant corporate philosophy, for the purpose of the employer obtaining the maximum economic profits and corporate power, is not in line with many of the values of this old Europe in which we live where people’s dignity implies the basic factor of our legal system, Article 2 of the Treaty on European Union  and Article 10.1 of the Spanish Constitution (EDL 1978/3879).

If workers lose their jobs due to applying the principle that "old things" are no longer of value and must be replaced by "new things", harm is caused because the reason for claiming such principle has not been proven.

In addition, the dismissed worker is placed in a situation where he feels suffering, pain, uncertainty, distress and anxiousness merely due to having reached a certain age.

The person who was unfairly dismissed for this reason would question his/her self-esteem and feels anxiety due to losing his/her job and, precisely based on his/her age, would be faced with the well-known difficulty of finding another job”.

By virtue of the foregoing, after all the considerations had been assessed as a whole and compared with the proven facts, the court deemed that the compensation for moral damages must be calculated at the amount of €20,000 for each plaintiff.

This judgement is just one example of how this type of discrimination can lead to high amounts being payable for the related damages caused to workers when calculating possible compensation.